10/29/74 BAILEY v. STATE

Errors to review a judgment and an order of the County Court of Racine County: William F. Jones, Judge.

Beilfuss, J.

The opinion of the court was delivered by: Beilfuss

On May 26, 1973, the jury found the plaintiff in error, Jack Douglas Bailey, guilty of the first-degree murder of Rose Marie Ahnen, age seven, contrary to sec. 940.01, Stats. He was also found guilty of enticing a child, Rose Marie Ahnen, for immoral purposes contrary to sec. 944.12, *fn1 and of attempting to entice a child, Paticia Crandall, age ten, for immoral purposes contrary to secs. 944.12 and 939.32. *fn2 Bailey was found not guilty of indecent behavior with a child contrary to sec. 944.11 (1). *fn3 The trial had been removed to Dane county from Racine county pursuant to an order for change of venue due to prejudicial pretrial publicity.

On Friday morning, March 2, 1973, Paticia Crandall was walking to school when a car in the street approached her and stopped, then pulled away and stopped again. The car door opened and the driver said, "Come here, little girl, come here." Paticia said nothing to him and ran as fast as she could to school. She arrived there at about 8:15 or 8:20 a.m. Later she identified Jack Bailey as the man who spoke to her and also identified his car as the one he was driving at the time.

At 8:15 on the same morning, Rose Marie Ahnen was seen walking to school by a neighbor. She was about four blocks from her school at the time. The school is about half a block from the place where Paticia Crandall was approached. Rose never arrived at school that day. For a day and a half, over a thousand individuals engaged in a city-wide search for the girl until about noon Sunday, March 4th, when Rose's dead, strangled body was found in an abandoned refrigerator in a small dump in north-western Racine county. The body was fully clothed except one foot had only a sock on it, while the other had a tennis shoe and red boot.

On Friday morning, March 2d, at 6 a.m., Jack Bailey was released from jail on a signature bond after being jailed the night before on a drunk charge. At 9:30 that morning, Mary Jo Tappa, Bailey's sister, saw him sleeping in the back seat of his car, which was parked in the front yard of her farm on the north side of Racine, about five miles from Rose's school, a twelve minute drive. The premises at the Tappa residence consisted of a house, barn, chicken coop and granary. Bailey woke up when Mary Jo came out but she returned to the house and did not see Bailey again until he came in the house at 11:15 a.m., at which time he went to bed and stayed there until 7 a.m., the next morning, with the exception of getting up to eat dinner. He left the house at 10 a.m., to take his mother to Union Grove and returned at noon. He left again at 1:15 p.m., and went to his brother-in-law's home where he apparently stayed until 10:30 Saturday night.

At 11:35 p.m., Deputy Sheriff Nello Lilla, who was patrolling the western portion of Racine county, observed a car weaving on County Trunk Highway C, about six miles from the intersection of Highway 45. The car was heading toward Highway 45 when Deputy Lilla stopped it. It was extremely foggy and Deputy Lilla decided that the car was weaving because it had a faulty headlight which made it difficult for the driver to see the road. Deputy Lilla let the driver go. He identified Jack Bailey as the driver of the car and identified the car as the one owned by Jack Bailey.

The next morning, Sunday, March 4th, at 9:17 a.m., Deputy Sheriff George Pottinger found Jack Bailey's car stuck in the mud in a field adjacent to Highway 45, just north of the intersection of Highway 45 and County Trunk Highway C. Lying behind the vehicle was a red boot with a tennis shoe inside, both of which matched the ones on Rose Marie Ahnen's dead body. Also lying behind the car was a screwdriver which was necessary to open the car's trunk due to a defective lock mechanism. Bailey kept a screwdriver in the back seat of his car for such a purpose. When the car was found in the field the front seat was pushed forward allowing access to the back seat. Deputy Pottinger found footprints in the mud leading away from the car, but he followed them only briefly and then called the sheriff's office to report his discovery.

Racine County Sheriff Bertermann, after learning of Deputy Pottinger's report, proceeded to the scene by helicopter and searched the area from the air. About a mile northeast of Bailey's car, across several fields, Sheriff Bertermann spotted the dump, landed, and eventually discovered the body in the refrigerator. The sheriff then sent for the coroner, the district attorney and personnel from the State Crime Lab.

While Sheriff Bertermann was searching the area from the air prior to finding the body, Sheriff's Detectives Casciaro and Wynhoff were following the footprints that led from Bailey's car. The tracks led from the driver's door on the Bailey car to the rear of it, then back towards the front of the car. The tracks went east for about 100 feet and then returned to the general area of the car at which point they struck out in a northeasterly direction across several fields. The tracks meandered and Casciaro and Wynhoff lost them several times due to grass and water in the field. The tracks led to a farm area and then continued again in a northeasterly direction heading towards the dump. Casciaro and Wynhoff followed the tracks to a point about a quarter of a mile from the dump when they were called off the search because the body had been found. There were no identifiable prints in the dump area itself. A plaster cast was made of one of the prints near Bailey's car and was introduced into evidence. The pair of boots Bailey was wearing when taken into custody on Sunday, March 5th, was also received in evidence.

Officer James Ivanoski went to the Tappa residence where Bailey had stayed most of Friday and Friday night, and found an old mattress in the chicken coop. He cut out a portion which appeared to be bloodstained. Subsequent testing at the State Crime Lab revealed that the portion of the mattress contained semen and Type AB blood, the same type that Rose Marie Ahnen had. Only three percent of the general population has Type AB blood.

Dr. Myron Schuster performed an autopsy on the body the same day it was discovered. He determined the cause of death to be asphyxia from strangulation caused by a rope which was still tied around the victim's neck when the body was found. He estimated that the girl had been dead about forty-eight hours but conceded this was only an estimate and that death could have occurred anywhere from twenty-four to sixty hours prior to the autopsy. An examination of the dead girl's external genital area disclosed a small area of reddening or hemorrhage in the right labia, probably caused by the insertion of some object although it could have been caused by any form of vaginal pressure. The doctor also detected red blood cells in the vaginal secretion indicating bleeding as evidence of injury. The vaginal tract and hymenal opening appeared larger than average but there was no clear-cut tear or laceration. There was no trace of spermatozoa in the vaginal secretion and no evidence of sexual penetration. There was no substantial amount of bleeding in the vaginal area.

After conviction and sentencing Bailey moved for a new trial. The motion was denied and Bailey obtained writs of error to review both the judgment and the order denying the motion for a new trial.

Additional facts will be stated in the opinion.

The plaintiff in error, hereinafter defendant, raises the following issues:

1. Did the county court have jurisdiction to try counts 2, 3 and 4 of the information when such charges were not contained in the criminal complaint and when no evidence was introduced at the preliminary hearing which would support bindover on such charges?

2. Was the defendant denied due process and equal protection of law by virtue of being denied a preliminary hearing on counts 2, 3 and 4 of the information herein?

3. Did the county court violate the provisions of sec. 971.12, Stats., and due process of law by denying defendant's motion to sever counts 2, 3 and 4 from count 1 of the information herein?

4. Was the prosecution of the defendant for counts 2, 3 and 4 undertaken in bad faith and did such prosecution constitute prosecutorial abuse of discretion?

5. Is the defendant entitled to a new trial on the charge of first-degree murder by virtue of the inclusion in the information of three lesser charges relating to sex offenses because such lesser charges prejudiced the jury and denied the defendant due process of law?

6. Did the county court commit prejudicial error by admitting into evidence, over defense objections, a section of a bloodstained mattress, although the decedent in this case is never alleged to have bled?

7. Did the trial court err in failing to consider the supplemental jury instructions proposed by defendant, taken from sources other than the standard Wisconsin Jury Instructions -- Criminal?

8. Was the evidence sufficient to convict this defendant of first-degree murder, enticing a child for immoral purposes, and attempting to entice a child for immoral purposes?

The complaint in this case charged Jack Bailey with only one crime -- first-degree murder. The information filed subsequent to a preliminary hearing, however, contained four counts: first-degree murder (count 1); indecent behavior with a child (count 2); enticement of a child for immoral purposes (count 3); and attempted enticement of a child for immoral purposes (count 4).

The defendant does not argue there was not probable cause for him to be bound over on the first-degree murder count. With respect to the sex-related charges (counts 2, 3 and 4), however, the defendant contends that no evidence was introduced at the preliminary hearing to support them, that such failure deprived the trial court of jurisdiction and that therefore he was improperly tried. We conclude the trial court did have jurisdiction as to all four counts.

The established rule in Wisconsin is:

". . . The state in its information may allege acts in addition to those advanced on preliminary hearing so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary. Mark v. State (1938), 228 Wis. 377, 280 N.W. 299. . . ." State v. Fish (1963), 20 Wis. 2d 431, 438, 122 N.W.2d 381. See also: State ex rel. Kropf v. Gilbert (1933), 213 Wis. 196, 201, 251 N.W. 478; Jones v. State (1924), 184 Wis. 50, 55, 198 N.W. 598.

The defendant contends that this is no longer the rule, basing this Conclusion on rather circular reasoning involving the meaning of sec. 970.03 (10), Stats., which provides:

"(10) In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. . . ."

By its own terms, this provision relates only to multiple count complaints, and does not affect a prosecutor's right to add additional, related counts to an information after a preliminary hearing. The defendant, however, refers to the revision committee's comments following the statute at 42A West's W.S.A. 129 as evidence of a contrary intent. Even if we were to disregard the rule of statutory construction forbidding resort to legislative intent when the wording of the statute is clear, *fn4 the defendant's contention cannot be accepted. The committee comment he refers to states:

"Sub. (10) is a new provision requiring a finding of probable cause as to each count in a multiple count complaint. If such a finding is not made as to any count, it shall be dismissed. This reverses the rule in Hobbins v. State, 214 Wis. 496, 253 N.W. 570."

The defendant claims that "the rule in Hobbins " which has been "reversed" by this subsection is the statement:

". . . The district attorney in filing his information is not limited by the complaint. . . . Nor is he limited by the opinion of the magistrate as to the offense committed. . . ." Hobbins v. State (1934), 214 Wis. 496, 510, 253 N.W. 570.

From a reading of the case, the statute, and the comment, the above-quoted language is not the "rule" to which the comment refers. The statute and comment are directed at the holding of the court which permitted the trial court to assume jurisdiction over and try counts which had been included in the criminal complaint but were specifically ...

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